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Curtis Thrower v. Lieutenant Honey Spirito

December 14, 2010

CURTIS THROWER, PLAINTIFF,
v.
LIEUTENANT HONEY SPIRITO,ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hochberg, District Judge

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Plaintiff, Curtis Thrower, a state inmate presently confined at the Monmouth County Correctional Institution in Freehold, New Jersey, at the time he submitted this Complaint for filing, seeks to bring this action in forma pauperis. Based on his affidavit of indigence, the Court will grant plaintiff's application to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file the Complaint.

At this time, the Court must review the Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court concludes that the Complaint should be dismissed with prejudice.

I. BACKGROUND

Plaintiff, Curtis Thrower ("Thrower"), brings this civil action, pursuant to 42 U.S.C. § 1983, against the following defendants: Lieutenant Honey Spirito, Hudson County Prosecutor's Office Sex Crime Unit; Detective Maria Dargen, Hudson County Prosecutor's Office Sex Crime Unit; the Hudson County Prosecutor's Office Sex Crime Unit; and Jane and John Does of the Hudson County Prosecutor's Office Sex Crime Unit. (Complaint, Caption and ¶¶ 4b and 4c). The following factual allegations are taken from the Complaint.

Thrower alleges that, on July 31, 2009, while confined at the Hudson County Correctional Center ("HCCC"), he was sexually assaulted by an unknown male. Thrower reported the incident to a correctional officer, and was taken to the medical department for treatment and to be sent for a sexual assault examination. A nurse at the HCCC medical department contacted the Hudson County Prosecutor's Office to report the alleged sexual assault. When Thrower was taken to Christ Hospital for a sexual assault examination, the Hudson County Prosecutor's Sex Crime Unit was notified. However, according to Thrower's Complaint, no investigator or police officer came to interview him. (Compl.,¶ 6).

Thrower alleges that defendant Spirito was notified about the assault, but did nothing because the assault did not involve an officer. After Thrower's family contacted the Prosecutor's Office and threatened a lawsuit, Thrower was interviewed by defendants Spirito and Dargen on September 8, 2009. At that time, Spirito told plaintiff that because the assault did not involve an officer, the Prosecutor's Office does not get involved, and no one would be sent to the jail or hospital to interview plaintiff. Spirito also allegedly stated that she did not have the manpower to send an investigator, and that the HCCC Internal Affairs Unit would conduct an investigation. (Id.).

According to the allegations in this Complaint, Thrower alleges that the Hudson County Prosecutor's Sex Crime Unit did nothing to catch the alleged rapist. They did not collect any evidence from the rape site, did not speak to any inmates in the unit, and did not view the DVD that allegedly showed the rapist and the place where the rape took place. Further, plaintiff's clothing and underwear were not retrieved for DNA analysis to identify rapist. (Id.).

Thrower states that defendants Spirito and Dargen made plaintiff feel that he was being "overdramatic and that [he] should have conducted [himself] in a manner that would not show [his] sexual orientation." (Id.). Thrower also alleges that the HCCC Internal Affairs Unit did not report the sexual assault or investigate the allegations. The Hudson County Prosecutor's Sex Crime Unit did not forward a sexual assault kit for examination until almost two months after the alleged assault; consequently, the kit was considered tainted. Thrower further alleges that defendants Spirito and Dargen attempted to cover up the incident because nothing was done until plaintiff filed his first lawsuit regarding the assault.*fn1 He claims that defendants "showed great deliberate negligence and should be held responsible for their unethical actions. Because of their unethical actions {plaintiff] now suffer[s] from great bounds of depression" and emotional damages. (Id.).

Thrower seeks over $7 million in punitive and compensatory damages. He also asks that policy and procedures be implemented for the Hudson County Prosecutor's Sex Crime Unit to follow in cases of sexual assaults at all New Jersey county jails.

This Court takes judicial notice of Thrower's earlier, related action, Thrower v. Alvies, et al., Civil No. 09-4296 (FSH), which he referenced in ¶ 2b of this instant Complaint. The earlier action involved the very same incident concerning the July 31, 2009 sexual assault. Thrower named different defendants, and asserted claims that he was denied medical care, that the named defendants in that action retaliated against him for making a complaint about the alleged sexual assault, and that defendants failed to protect him. (See Thrower v. Alvies, et al., Civil No. 09-4296 (FSH) at Docket entry no. 1, Complaint).

This Court notes that, although Thrower made allegations in the earlier action regarding the failure of defendants to investigate and take the sexual assault seriously, Thrower did not name the defendants in the instant action as defendants in the earlier action. Plaintiff had an opportunity to amend his Complaint and name additional parties to the earlier lawsuit, as permitted under the February 16, 2010 Scheduling Order, Docket entry no. 38. The Scheduling Order set forth an April 23, 2010 deadline for amending pleadings and joinder of parties. A July 13, 2010 deadline was given for completion of discovery. Thrower filed the instant Complaint on or about June 3, 2010, ...


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